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HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
WA No.36 of 2024
Sri Swapan Roy Choudhury
...... Appellant(s)
V E R S U S
The State of Tripura and others
Respondent(s)
..….
For Appellant(s) : Mr. P. Roy Barman, Sr. Advocate,
Mr. Samarjit Bhattacharjee, Advocate,
Mr. Koomar Chakraborty, Advocate.
For Respondent(s) : Mr. Kohinoor N Bhattacharya, G.A.,
Mr. N. Majumder, Advocate.
HON’BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
S.D PURKAYASTHA
HON’BLE MR. JUSTICE
=O=R=D=E=R=
29/04/2024
Heard Mr. P. Roy Barman, learned senior counsel assisted by
Mr. Samarjit Bhattacharjee and Mr. Koomar Chakraborty, learned counsel
appearing for the appellant. Also heard Mr. Kohinoor N Bhattacharya,
learned Government Advocate and Mr. N. Majumder, learned counsel
appearing for respondent Nos.4 and 5.
[2] The writ petitioner (appellant herein) is aggrieved by the
dismissal of WP(C) No.1098 of 2022 dated 07.03.2024 passed by the
learned Single Judge whereby the learned Writ Court did not interfere in the
matter. Petitioner, a Junior Engineer (Civil) Grade-II (Group-C) in the
Department of Agriculture, superannuated on 28.02.2022. During service, he
was granted the benefit of CAS-I and CAS-II respectively with effect from
05.10.1992 and 01.01.1999. He was also accorded the ACP-III benefit on
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completion of 25 years service with effect from 05.10.2013. However, the
Office of Accountant General (A&E) issued a letter dated 23.08.2022
(Annexure-2) to the Executive Engineer (West), Department of Agriculture
& Farmers Welfare, West Tripura on the subject of pension proposal of the
petitioner. The relevant part of the letter is extracted hereunder:
“No.Pen-2/RC/PR-44/2021-2022/ Dated: 23.08.2022
To
The Executive Engineer (West),
Deptt. of Agriculture & Farmers Welfare
Krishi Bhavan, Agartala, West Tripura
Subject: Pension proposal in respect of Sri Swapan Roy Choudhury,
Retd. Jr. Engineer (Civil)
Sir,
With reference to your letter No.F.2(3)-Agri/EE/W/Estt/19-20/20-21
05/04/2022, on the subject cited above, I am to state that on scrutiny of the Service
book of Sri Swapan Roy Choudhury, Retd. Jr. Engineer (Civil), it is observed that
the pay fixation of Sri Swapan Roy Choudhury, Retd. Jr. Engineer (Civil) needs to
nd
be corrected. He is entitled for 2 CAS on 05/10/2000 instead of 01/01/1999 (as
th
per 15 amendment under ROP 99). Accordingly, his last pay would be
Rs.1,10,300/- as on 01/07/2021 (Date of Retirement 28-02-2022).
In the light of above observation, you are requested to review the
matter, if agreed, the revised regulation of pay may be made in the Service Book
under proper attestation and Due & Drawn statement of overdrawal of Pay and
Allowances and Leave Salary etc. and revised LPC along with a undertaking of
pensioner for recovery from commutation (if needed) may be furnished to this
office for further necessary action at this end.
However, pension has already been released on the basis of last pay
Rs.1,10,300/- as per this office calculation – withholding of DCRG and
commutation at the same will be released on receipt of reply from your end.
An early reply is requested.
Yours faithfully,
Enclo: Service Book
Sd/- Illegible
Sr. Accounts Officer”
[3] It was observed on scrutiny of the Service Book of the
petitioner that pay fixation needs to be corrected and that petitioner was
nd th
entitled for 2 CAS from 05.10.2000 instead of 01.01.1999 (as per 15
amendment under ROP-1999). As such, his pay fixation needs to be
corrected. Accordingly, his last pay would be Rs.1,10,300/- as on
01.07.2021 (date of retirement 28.02.2022). The Executive Engineer
concerned was requested to review the matter, if he agreed, and issue revised
regulation of pay made in the Service Book under proper attestation and due
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& drawn statement of overdrawal of pay and allowances and Leave Salary
etc. and a revised last pay certificate along with undertaking of the pensioner
for recovery from commutation (if needed) may be furnished to the office
for further necessary action at their end. However, it was also indicated that
pension has already been released on the basis of last pay of Rs.1,10,300/- as
per the office calculation withholding DCRG and commutation which shall
be released on receipt of reply from their end. A copy of the communication
was also sent to the writ petitioner. This communication was impugned in
the writ petition. Apart from that, petitioner also prayed that the respondents
may be restrained from recovering any amount from the pensionary benefits
of the petitioner on account of alleged excess payment. He also prayed for a
Writ of Mandamus for release of the remaining gratuity amount, commuted
value of pension and other outstanding pensionary benefits.
[4] The learned Writ Court referred to an undertaking given by the
petitioner on 12.05.2009 in a Form of option as per rule 5 and 6 to Schedule-
II, Part-A to the effect that he undertakes to refund to the Government any
amount which may be drawn by him in excess of what is admissible on
account of erroneous fixation of pay in the revised pay structure as soon as
the fact of excess withdrawal comes to his notice. There is another
declaration in Schedule-I with an undertaking in similar language that has
been received by the Department of Agriculture on 16.06.1999. The learned
Writ Court, therefore, held that the proposed recovery from the pensionary
benefits of the petitioner because of conferment of CAS II benefits from a
date anterior to the due date was proper. The petitioner had undertaken to
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reimburse any excess payment received. The learned Writ Court also
referred to the decision rendered by the Apex Court in case of State of
Punjab and others versus Rafiq Masih (White Washer) and others,
reported in (2015) 4 SCC 334, Civil Appeal No.7115 of 2010 (Thomas
Daniel versus State of Kerala and others), reported in AIR 2022 SC 2153
and further in case of High Court of Punjab and Haryana and others
versus Jagdev Singh, reported in 2016 14 SCC 267. The learned Court,
therefore, held that if any amount is found to be paid in excess to the
petitioner is required to be refunded in view of the undertaking.
[5] The writ petitioner being aggrieved is in appeal.
[6] Mr. P. Roy Barman, learned senior counsel for the appellant at
the outset submits that if the CAS-II benefits have been conferred from a
date i.e. 01.01.1999 anterior to the due date i.e. 05.10.2000 appellant does
not have any objection to fixation of his last pay at a reduced scale to
Rs.1,10,300/- from Rs.1,17,000/-. However, the confermant of CAS benefit
from an anterior date was not on account of any misrepresentation or fraud
on the part of the writ petitioner. The pay fixation is done by the department
and disbursement is allowed by the competent authority i.e. the drawing and
disbursing authority. The writ petitioner was working at a lower post of
Junior Engineer in the department. It is submitted that neither any show-
cause notice has been issued for proposed recovery by the competent
authority under the department nor any formal order of recovery has been
issued against him. Petitioner in bona fide belief that his pensionary benefits
may be withheld on account of the impugned communication between the
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office of Accountant General and the Executive Engineer, Department of
Agriculture & Farmers Welfare, West Tripura approached the Writ Court for
relief. It is submitted that the recovery of excess payment, if any, also relates
to a period far in excess of 5 years from his retirement or any such order of
recovery which is yet to be issued. He relies upon the principles laid down
by the Apex Court in case of Rafiq Masih (supra) in support of his
submission. It is submitted that in such circumstances, when recovery of
pensionary benefits or withholding by the respondents entails adverse
it’s
civil consequences. It should not be allowed to be made without proper
opportunity to the petitioner to show-cause. As such, learned senior counsel
for the appellant prays that the department may be directed to consider the
case of the petitioner in the light of the aforesaid facts and the proposition of
law laid down by the Apex Court so far as the question of recovery is
concerned. However, he does not object to re-fixation of his last pay scale to
Rs.1,10,300/- from Rs.1,17,000/- for the purposes of issuance of pension
payment order and other pensionary benefits.
[7] Mr. N. Majumder, learned counsel for the respondents No.4 and
5 submits that the impugned communication dated 23.08.2022 is a
correspondence between the office of Accountant General and the concerned
Executive Engineer of the Department with a copy to the petitioner but it is
not any order of recovery issued by the office of Accountant General against
the petitioner per se. The competent authority under the department had
been only asked to revise the pay of the petitioner and re-submit it with
endorsement in the Service Book and proper attestation with an undertaking
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of the pensioner for any recovery from commutation of pension (if needed)
to the office of Accountant General.
[8] Mr. Kohinoor N Bhattacharya, learned Government Advocate
submits that as on date no such order of recovery has been issued by the
department. He however does not dispute the legal position that in case the
department chooses to recover any such amount paid in excess due to
conferment of CAS-II benefits to the petitioner from an anterior date,
principles of natural justice required a proper show-cause notice to be issued
upon him before any such order is passed.
[9] We have considered the submissions of learned counsel for the
parties and taken note of the relevant materials from record. We have also
gone through the impugned judgment. The relevant facts referred in the
foregoing part of this order do not need any reiteration. It has been submitted
at the outset on behalf of the petitioner that if the CAS-II benefits were
conferred from a date anterior to the due date, petitioner does not have any
objection to re-fixation of his last pay as proposed by the Accountant
General. However, recovery without any due notice after retirement and that
too for benefits conferred not on account of any misrepresentation or fraud
on the part of the petitioner for a period relating to more than 22 years back
should not be done without an opportunity to the petitioner to show-cause.
We are also in agreement with the submission that in case the department
chooses to recover the amount paid in excess due to conferment of CAS-II
benefits from a date i.e. 01.01.1999 anterior to the due date i.e. 05.10.2000
the competent authority under the department should issue a show-cause
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notice to the petitioner before the proposed recovery. The petitioner shall be
allowed opportunity to submit his reply with all supporting documents and
submissions. The competent authority on consideration of reply of the
petitioner would thereafter proceed to take a decision, in accordance with
law, within a reasonable time. It appears that the pension of the petitioner at
the reduced scale of Rs.1,10,300/- has already been released but gratuity
benefits have been withheld awaiting a response from the department. In
those circumstances, the competent authority of the department would take
an early decision in the matter, in accordance with law.
[10] In the light of discussions and observations made hereinabove,
the impugned judgment dated 07.03.2024 passed in WP(C) No.1098 of 2022
is set aside. The writ appeal is disposed of in the manner and to the extent
indicated above.
Pending application(s), if any, also stands disposed of.
S.D PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
(
SIDDHARTHA
Digitally signed by SIDDHARTHA
LODH
LODH
Date: 2024.05.03 19:18:36 +05'30'
Dipesh